RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01572 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be promoted to the grade of first lieutenant (1st Lt), effective 5 March 2012. His AF Form 707, Officer Performance Report (OPR) (Lt thru Col), rendered for the period 10 February 2013 through 9 February 2014, be changed to reflect “Meets Standards” instead of “Does Not Meet Standards”. APPLICANT CONTENDS THAT: His promotion to 1st Lt was withheld pending the outcome of a sexual assault investigation. The allegation was later proven to be untrue through a court-martial. Therefore, his squadron commander recommended that his promotion delay be terminated with the original date of promotion reinstated; however, it was further delayed. He was unfavorably treated by his wing commander because he was the subject of the investigation. The wing commander used a Letter of Admonishment (LOA) and Letter of Reprimand (LOR) that was issued back in 2011, as an excuse to deny him promotion in 2013. Although he was proven innocent, he was punished through an administrative process. If the LOA and LOR were the actual reasons for his denial of promotion, he would have received a Not Qualified for Promotion (NQP) action prior to his court-martial which convened in 2012. The fact that he was not immediately removed from the promotion list after receiving the LOA and LOR meant that the outcome of his case was going to determine his ability to be promoted. In addition, his improvement since receiving the LOA and LOR are documented in his OPR issued after the contested OPR. His promotion was delayed 22 months which is in violation of AFI 36-2501, Officer Promotions and Selective Continuation. Furthermore, his NQP action improperly references a LOA that he received 44 days after the promotion extension deadline expired. His OPR assessment indicating that he did not meet standards is unfair and unjust because he exceeded standards during the period of his contested OPR. Also the LOA issued for tardiness is not a justifiable reason to receive a referral OPR. The issuance of a referral OPR by his squadron commander was clearly punishment as a result of the sexual assault investigation. His wing commander abused his discretion and applied the standard in a clearly unfair manner because it is common knowledge that other officers on base had received more paperwork than him, for more serious mistakes, and was not denied their promotions or requested to separate. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 6 April 2010, the applicant was commissioned in the Regular Air Force. On 21 February 2011, the applicant was verbally notified that his promotion to 1st Lt, effective 2 March 2012 was delayed until 1 September 2012. On 19 July 2011, the applicant was issued a LOA for his failure to follow emergency war order procedures by not decoding emergency action messages. On 25 July 2011, the applicant was issued a LOR for knowingly and intentionally smoking multiple cigarettes inside the Echo LCC Tunnel Junction, in direct violation of federal code regulations. On 4 January 2012, the applicant became the subject of an investigation for sexual assault. On 21 February 2012, an AF Form 4363, Record of Promotion Propriety Action (PPA), was initiated by the applicant’s commander, notifying him of his recommendation for an extension of his previous promotion delay. Specifically, for over the past eight months the applicant was issued a LOA, a LOR and under investigation for sexual assault. On 27 February 2012, the applicant acknowledged receipt of the PPA, elected to consult with legal counsel and to submit a written statement. On 28 February 2012, the PPA was found to be legally sufficient and the wing commander approved the applicant’s promotion delay until 1 September 2012. On 29 February 2012, the applicant acknowledged the final decision of his promotion delay until 1 September 2012. On 3 August 2012, an AF Form 4364, Record of Promotion Delay Resolution, was initiated by the applicant’s commander, notifying him of his recommendation for his pending promotion delay to be extended until 1 March 2013. Specifically, this action was taken for the reasons initially cited in his PPA dated 21 February 2012 and awaiting the disposition of the sexual assault investigation. On 3 August 2012, the applicant acknowledged receipt of the promotion delay resolution, elected to consult with legal counsel and not to submit a written statement. On 14 August 2012, the promotion delay resolution was found to be legally sufficient and the wing commander approved the extension of promotion delay until 1 March 2013. On 19 December 2012, the applicant was acquitted by a general court-martial of all sexual assault charges. On 3 January 2013, an AF Form 4364 was initiated by the applicant’s commander, notifying him of his recommendation for the termination of his promotion delay with the original date of promotion to be reinstated. The specific reason for this action was due to his acquittal because the verdict eliminated the primary reason for the promotion delay. On 3 January 2013, the applicant acknowledged receipt of the promotion delay resolution, elected to consult with legal counsel and submit a written statement on his behalf. On 15 January 2013, the promotion delay resolution was found to be legally sufficient and the wing commander concurred with the recommendation. On 28 March 2013, the applicant’s new wing commander notified him of his recommendation that he be found not qualified for promotion (NQP) to the grade of 1st Lt. The reasons for the NQP action was due to his engagement in unprofessional conduct, demonstration for lack of judgment and integrity, which is incompatible with continued service, let alone promotion to a higher grade. It included the aforementioned LOA and LOR, as well as, indicated his conduct as an officer, taken as a whole, fell far short of demonstrating the requirements of exemplary conduct set forth in Title 10 U.S.C. 8583. Furthermore, he demonstrated that he is not mentally, physically, morally, or professionally qualified to perform the duties of a 1st Lt. Despite the rehabilitative opportunities provided by his unit, he failed to rectify his performance and leadership deficiencies. His overall decline in performance resulted from a lack of professionalism and sound judgment. His inability to consistently execute checklists and technical orders requires close supervision. In addition, these deficiencies were documented in his referral OPR. On 29 March 2013, the applicant acknowledged receipt of the NQP action and elected to submit a written statement on his behalf. Specifically, he indicated that he does not believe a LOA and LOR given to him two years ago in the same month as a brand new deputy justifies an overall assessment of engaging in unprofessional conduct or demonstrating lack of judgment and integrity, let alone denying him promotion to a higher grade. On 13 May 2013, an AF Form 286A, Personnel Reliability Program (PRP) Permanent Disqualification/Decertification Action, was initiated by the applicant’s commander notifying him of being permanently disqualified/decertified from PRP. The specific reasons for the action was due to the establishment of his UIF, effective 21 October 2011, his temporary decertification due to an ongoing sensitive issue, effective 15 August 2012, and the abundance of disciplinary paperwork in his UIF. On 14 May 2013, the applicant acknowledged receipt of the PRP action and elected to submit additional information. On 7 June 2013, the reviewing official of the PRP action agreed with the applicant’s permanent disqualification/decertification and recommended his non-selection for promotion to 1st Lt. On 23 July 2013, the 20th AF/CC concurred with the NQP recommendation; however, on 13 September 2013, AFGSC/CC non-concurred, thereby terminating the NQP action. On 30 September 2013, the termination action was found to be legally sufficient. On 28 October 2013, the applicant was issued a LOA for showing up late twice for duty wearing civilian clothes. On 24 January 2014, the original NQP was superseded by a new NQP action due to the applicant’s new misconduct. Specifically, it cited not only the above reference misconduct but included reference to his poor performance, lack of professionalism and sound judgment. On 30 January 2014, the applicant provided a statement on his behalf regarding the new NQP action. Specifically, he indicated he made mistakes in 2011 due to adjusting to his new environment and duties. However, his misconduct in 2013 should not be reflected in his promotion decision because it happened almost two years after his promotion was denied. He believes that even though he has been proven innocent of the court-martial offenses, he is still being punished. On 31 January 2014, the commander upheld his decision regarding the NQP action and recommended immediate separation. The 20 AF/CC and AFGSC/CC concurred with the recommendation that the applicant be found not qualified for promotion. On 4 March 2014, the applicant was issued a referral OPR for the period 10 February 2013 through 9 February 2014, indicating he did not meet the standards or professional qualities and failed to meet and abide by regulations. Also, during this reporting period he failed to show for vehicle duty at the prescribed hours two days in a row for which he received a LOA. On 7 March 2014, the applicant responded to his referral OPR wherein he indicated a LOA for tardiness is not a justifiable reason to receive a referral OPR. His hard work is in jeopardy because of a misunderstanding about duty hours. Also, his overall performance assessment is that of a reliable officer; showing initiative many times and a fine example of a good leader. On 22 April 2014, the applicant’s newly submitted NQP action was found to be legally sufficient to support him not being qualified for promotion to the grade of 1st Lt and his separation from the Air Force. On 23 June 2014, the Air Force Personnel Board (AFPB) reviewed the applicant’s case and recommended that he be found NQP and should be immediately separated. On 27 June 2014, under the authority delegated by the Secretary of the Air Force, it was determined the applicant was not qualified under AFI 36-2501, Officer Promotions and Selective Continuation, for promotion to the grade of 1st Lt and directed he be immediately discharged in accordance with AFI 36-3207, Separating Commissioned Officers, with an honorable service characterization. On 19 August 2014, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Non-Selection, Permanent Promotion,” and was issued an SPD code of “JGB”. He was credited with 4 years, 4 months, and 14 days of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C, D, and E. AIR FORCE EVALUATION: AFPC/DPSID recommends denial to the applicant’s request to change his contested report to reflect that he “Met Standards.” The applicant has provided insufficient documentation to prove his assertions that the contested evaluation was rendered unfairly or unjustly. It is Air Force policy that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain—not only for support, but also for clarification/explanation. The applicant has provided insufficient supporting documentation or information from the rating officials on the contested report to prove it was not rendered fairly based on his performance factors within the reporting period. Moreover, in accordance with (IAW) Air Force Instruction (AFI) 36-2406, Officer and Enlisted Evaluation Systems, the applicant has not provided a revised OPR, along with signed memorandums of support or justification from the original evaluators at the time. It appears the report was accomplished in direct accordance with all applicable Air Force policies and procedures. Once a report is accepted for file, only strong evidence to the contrary should warrant correction or removal from an individual’s record and the burden of proof should be on the applicant. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denial. IAW AFI 36-2501, commanders question promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in 10 U.S.C § 8583 or is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. Air Force policy also states that formal rules of evidence do not apply to a PPA. All actions were reviewed by Air Force legal offices and were found to be legally sufficient to warrant the action taken. Promotion is not a reward for past service; it’s advancement to a position of greater responsibility based on the requirements of the air force and the officer’s future potential. If an officer has not met the requirement for exemplary conduct, it is in the best interest of the air force for the proper authority to initiate action to delay promotion, to find an officer not qualified for promotion, or to remove the officer from a promotion list. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. AFPC/JA recommends denial. The applicant’s contention that the LOA and LOR are too old to be considered and are now serving as a pretext to permit adverse administrative action is incorrect. We do not agree with his belief that these incidents were never considered serious enough to have supported an NQP or such action would have been initiated before the court-martial. With a serious allegation of sexual assault requiring investigation and ultimately prosecution of the allegation in a court-martial, it would actually have been premature to initiate the NQP until all outstanding issues; to include the court-martial were resolved. The applicant also argues that until the misconduct occurred in 2013, the command was prepared to terminate the action after the acquittal and promote the officer to 1st Lt. While that is true, the fact that the applicant committed the misconduct in October 2013 that resulted in the 28 October 2013 LOA constituted a proper basis to review once again the applicant’s overall conduct and performance as a second lieutenant and renew the adverse actions. Since the applicant was and remained a second lieutenant when all three of the incidents supporting the NQP and referral OPR occurred, it was legally permissible to use all the incidents to establish by a preponderance of the evidence the applicant’s overall behavior and performance fell below the standard of exemplary conduct required of every officer. These incidents and the pattern they represented were alone sufficient to sustain the adverse actions. Moreover, there is absolutely no evidence that the command improperly based the actions in whole or in part on the allegation of sexual assault for which the applicant was acquitted. The applicant’s misconduct and lack of professionalism and sound judgment represented a legal and proper basis to find the officer NQP and discharge him accordingly. The applicant has failed to prove otherwise. A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 25 August 2015 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1.  The applicant has exhausted all remedies provided by existing law or regulations. 2.  The application was timely filed. 3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2014-01572 in Executive Session on 29 September 2015 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-01572 was considered: Exhibit A.  DD Form 149, dated 7 April 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPSID, dated 1 July 2015. Exhibit D.  Memorandum, AFPC/DPSOO, dated 17 August 2015. Exhibit E.  Memorandum, AFPC/JA, dated 24 August 2015. Exhibit F.  Letter, SAF/MRBR, dated 25 August 2015.